Carpenter v. Norris

Cope, J. delivered the opinion of the Court—Field, C. J. concurring. The complaint alleges that the plaintiffs are entitled to the use of the water of a stream called “ Cayote creek,” and that the defendants are diverting the same to their damage. The answer sets up a prior right in the defendants, and justifies the diversion on the [439]ground, of the superiority of their claim to the water, alleging also that the water they are charged with diverting is not the natural water of the stream. On the trial of the case the Court submitted to the jury certain instructions, and directed a general verdict in case their decision should turn upon the question of priority. The result was a general verdict in favor of the defendants, and the necessary inference is that the jury acted upon the direction of the Court and based their decision on the ground of priority. The error assigned relates to the rejection of evidence having no bearing on this point, and whether the evidence was admissible or not is an immaterial question.

The judgment is affirmed.